Secretary to the Department of Justice and Community Safety v Hawking (a pseudonym)

[2019] VCC 2114

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Applicant
v
JOHN HAWKING (A PSEUDONYM)	Respondent

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2019
DATE OF RULING:	17 December 2019
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v Hawking (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2114

REASONS FOR RULING
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Subject:  Interim Supervision Order Application

Catchwords:             Application - interim supervision order – whether there is an unacceptable risk to the community

Legislation Cited:     Serious Offenders Act 2018

Cases Cited:Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722; Nigro v Secretary to the Department of Justice 41 VR 359; ARM v Secretary to the Department of Justice 29 VR 472

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Coghlan	Minter Ellison
For the Respondent	Ms B Robertson	Victoria Legal Aid

HIS HONOUR:

1 This is an application for the renewal of a supervision order pursuant to s22(1) of the Serious Offenders Act 2018 (“the Act”) and an application under section 46(1) of the Act for an interim supervision order.

2       Ms Coghlan appeared for the Applicant and Ms Robertson for the Respondent.  The matter proceeded by consent before me on the basis of draft orders that the Applicant had prepared.  At the time the matter was heard I indicated to the parties that I had read the relevant material and was prepared to make orders in the terms agreed between the parties.

3       I enquired with the parties as  to whether there was any utility in simply proceeding to renew the supervision order at this stage, rather than make an interim order now and have the matter brought back unchanged in January 2020 when the application for a final order was slated.  Ms Robertson informed the Court that her client did not intend to obtain any further material between this hearing and the final hearing date.  Ms Coghlan informed the Court that Her Honour Judge Millane had listed the matter before her as she had previously made the supervision order. In that circumstance it was agreed that the matter should proceed simply as an application for an interim order.

4 In short form having read the material I am satisfied that the Respondent posed an unacceptable risk of harm to the community, the risk of damage posed by re-offending was serious and by balancing the terms of the orders with Respondent’s right to liberty. I considered the interim supervision order should be made. I advised the parties that as required by the Act I would publish reasons. These are those reasons.

Facts

5       Ms Coghlan tendered a chronology setting out the Respondent’s background and antecedent criminal history.  This material was conveniently also summarised by Her Honour Judge Millane in her judgment of 17 May 2017.  I do not need to repeat that history for the purposes of these reasons. What is more relevant is the material of Mr Candlish, a consultant psychologist, who provided a report dated 5 May 2019. Mr Candlish had previously examined the Respondent and provided a report dated 18 November 2016. I will not summarise that report in detail.  It does contain material at [34] which deals with an incident report in April 2018 that indicates an increase in risk of sexual recidivism.  This led to an increase in accompaniment provisions from late April 2018 to deal with the increased risk.  He was also subject to a further assessment with a Dr Hockey a forensic psychologist.

6       In early 2019 the Respondent refused ongoing treatment with Dr Curtis in what was seen by his treaters as indicative of his difficulty regulating his emotions.[1]

[1] See [45]

7       I also considered it relevant that Mr Candlish, in his review of the material relayed the Respondent’s views that he felt safe at his accommodation at Capello House and that it would be difficult for him to reside elsewhere. It is undoubted that he needs such ongoing care to allow him to complete his activities of daily living given his intellectual state.

8       When looking at the risk level Mr Candlish, after using both empirical measures, and structured professional judgment, considered the Respondent falls into the moderate to high risk categories. It is self evident that such offending is likely to cause serious psychological harm to the (most likely child) victim.

The law

9 Section 1 of the Act reads in part as follows:

“The purposes of this Act are—

primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and

secondly, to facilitate the treatment and rehabilitation of those offenders; and

…”

The respondent was an eligible offender for a supervision order application under s8 of the Act by virtue of the fact that he was subject to an interim supervision order.

10      In Secretary to the Department of Justice and Community Safety v ST,[2] a decision of his Honour Tinney J of the Supreme Court, His Honour set out the relevant legislation and current authority at paragraphs [20-34]. I will not repeat those paragraphs in total as they are well understood principles in these matters. I have however set out the leading principles from His Honour’s judgment:

[2][2019] VSC 722.

Unacceptable Risk

22 The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2004, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’)…

25  The Court held:

Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.

26  The Court further stated:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.

27  The Court in Nigro made it clear that the test of unacceptable risk:

should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection…

34   In ARM v Secretary to the Department of Justice, the Court of Appeal considered the making of an extended supervision order under the previous Serious Sex Offenders Monitoring Act 2005. In respect of the provision of that Act dictating a 15 year maximum period for an order, the Court stated:

It is implicit in s 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program.

Analysis

11      Applying the (uncontradicted) expert evidence, in the context of the known history of the Respondent, I find that he poses an unacceptable risk to the community without the imposition of an interim intervention order of the type sought and agreed to.  In making this finding I take into account the gravity and seriousness of the harm which would be caused if he did re-offend.  I consider that to be undoubtedly serious psychological harm to a young child given his past offending and even most recent reports as to intent in April 2018. In considering whether the proposed order is the minimum required to protect the community balanced against the Respondent’s right to liberty I am satisfied that the proposed order meets this balance.